Did Cicinelli’s Lawyer REALLY Say That Kelly Thomas ‘Killed Himself’? (That Question Isn’t Rhetorical)

Cicinelli and attorney Michael Schwartz

Hang on — *what exactly* did Jay Cicinelli’s attorney Michael Schwarts say about Kelly Thomas “killing himself”?

The OC Weekly posts its most popular article of the past week on (at least some) Sundays; this week it was Scott Moxley’s provocatively titled report on the first day of the trial in the Kelly Thomas killing: “Fullerton Police Lawyers: Kelly Thomas Killed Himself“.

That’s quite a headline.  And it’s plausible to me that one or both defendant’s lawyers did say something like that.  But I read through the article just now — and it’s not clear to me that they did.  It’s also not clear to me what they meant if they did say it.  So let’s take a look around.

Cicinelli defense lawyer Michael Schwartz admitted cops used force on Thomas but, despite him falling silent during the attack and lying in a huge pool of his own blood, he was medically fine when EMT’s put him into an ambulance.

Schwartz is asking jurors to declare that Thomas killed himself and police, his close companions during his final minutes alive, neither contributed to the death nor committed any criminal acts.

His line–delivered without cracking a smile–was that an “overexerting,” 37-year-old Thomas beat himself to death by struggling with concerned, compassionate officers.

“His heart couldn’t take it,” said Schwartz.

He later added, “A tragedy? Yes. A crime? No. Sometimes tragedies happen in this world.”

Putting aside that fatally “overexerting” oneself is by no stretch of the imagination “beating oneself to death,” what does the emphasized-in-the-original phrase “Thomas killed himself” actually mean?  I’m not trying to reignite a feud with Moxley or to provoke Gustavo (as if I have to try); I’m really asking.  Here’s a partial list of possibilities:

  1. He intentionally and from the outset wanted to provoke the cops to kill him — aka “suicide by cop”
  2. Once in the situation, he knowingly acted in a way that would inevitably lead to the cops killing him.
  3. Once in the situation, he recklessly acted in a way that made it likely that the cops would kill him.
  4. Once in the situation, he negligently acted in a way that would lead to his own death even if the cops didn’t want to kill him.

I’ll admit up front: this mapping excuses onto the different levels of what attorneys call mens rea — the level of intention behind an act — isn’t perfect.  While I wouldn’t defend it in an academic paper, I think that it’s close enough to provide some insight into the question of what exactly the argument being made here is.

The claims lower on the list get easier to prove — but they are also less likely to exonerate the accused.  I’m interested, not as a criticism of the author or copy editor, in knowing what their claim actually was.  (And, of course, this is the opening statement that is absent from the media pool video thanks to the dispute about whether the DA’s office was entitled to the feed, so it’s hard to check.)

When I read the headline, my understanding was they the attorneys were arguing that Thomas essentially committed “suicide by cop” — where (the story goes) someone feeling suicidal intentionally puts themselves in a position where they will be killed by a cop — because that’s more acceptable to society, relatives, or God than actually committing suicide.  If others didn’t get that sense from the headline, that’s good — because I don’t see any evidence from the story itself that that’s true.

The “knowing” argument would involve Thomas saying “I’m going to keep struggling to get you off of me even though I know that it will likely lead to my death.”  His desiring freedom, but accepting the prospect of dying as the price of fighting for it, is a little more plausible — but also I don’t see much evidence for that sort of calculation.  First of all, until Cicinelli jumped into the fray, I don’t think that Thomas (even if he were thinking rationally) would have expected to die if he didn’t stop struggling — and after Cicinelli shocked him and started hammering his head I don’t think that we can say that he would be thinking rationally at all.  If his reaction from that point on was instinctive, then it doesn’t excuse Cicinelli’s actions (if otherwise unnecessary) for putting him in that situation.

The “reckless” argument is that Thomas didn’t make the above mental calculation, but that his struggling created the likelihood that the cops would kill him.  In some ways, this seems like the most likely explanation for what the attorney said — but in that case I don’t think that the phrase “Kelly Thomas killed himself” is appropriate.  It’s also not clear that it exonerates the cops: if Thomas had the right to try to escape when they were holding him down (or even crushing him) — arguably itself a negligent act on the part of some or all of the police — then I’m not sure that this clears anyone of manslaughter.

The “negligent” argument (which presumes that Thomas had some duty to himself, to keep himself alive) seems even less like Thomas “killing himself.”  This would suggest that while someone else might have survived in this situation, Thomas himself was “responsible for his death” because he had an enlarged heart (or whatever) meaning that he would not be able to survive the exertion of the struggle to free himself from those assailing him.  In a sense, I guess that that could count as “killed himself” — pretty much the same sense that someone who played a game of pickup basketball despite being out of shape could be deemed to have “killed himself” due to an ensuing heart attack — but that’s really not what I got from the headline.

It also doesn’t seem to exonerate Cicinelli.  If Thomas was depending on his (even compromised) mental faculties to guide him through this perilous situation, Cicinelli’s tasering him and then beating him in the face took away whatever ability he had to respond in an appropriate way — because at that point he was clearly fighting for his life and the frontal lobe cedes control to the primitive midbrain.  (As an analogy: if Cicinelli and Thomas were standing with Thomas’s back to a cliff and Cicinelli started firing at him and Thomas backed away in a panic and fell off the cliff, I doubt that we’d say either that Thomas killed himself or that Cicinelli was not guilty of manslaughter — unless his action was otherwise justified (most likely by self-defense.)

I wish that I had time to attend and follow the Thomas trial — but I don’t.  I would like to understand what the actual argument is about, though — and I don’t.  It still seems to me to be a matter of whether Cicinelli truly had reason to escalate the situation to the point where it became impossible for the pile of officers to extricate Thomas from the situation.  Whether or not Thomas had an enlarged heart doesn’t seem to be the critical point; if Cicinelli was wrong to jump in there and escalate the police reaction — as well as, if I recall correctly that this was him, stand on the bumper of a car pressing down with his back against another officer to increase the amount of force being used to hold Thomas down — then Thomas’s physical condition doesn’t seem to matter.

Even if Thomas (arguably) wouldn’t have died if he hadn’t struggled, that’s not the same as “killed himself” — and it’s not clear to me that, by saying that Thomas was unusually vulnerable to his own exertions, Cicinelli’s attorney was even making that argument.  In my view, there’s a huge difference between “was in some way responsible for his own death” (for example, by struggling) and “killed himself.”  I hope that the Weekly or others will clarify what the argument was.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)